Transcript

Friday, May 27, 2011

This week, Congress reauthorized the Patriot Act without much debate, but with the full-throated support of the Obama administration.

ATTORNEY GENERAL ERIC HOLDER: Our hope is that these provisions will be reauthorized for as long as we possibly can. If they were done on a permanent basis, that is not something that we would object to.

BOB GARFIELD: That was Attorney General Eric Holder, apparently not as concerned as privacy advocates were about the act’s potential impact on civil liberties. Nor were most legislators. When Kentucky Senator Rand Paul objected to federal searches of gun records, Democratic Senate Majority Leader Harry Reid accused Paul of being soft on terror. Meanwhile, Oregon Senator Ron Wyden suggested that the government is secretly interpreting the act even more broadly than generally assumed.

Washingtonian Magazine reporter Shane Harris is the author of The Watchers: The Rise of America’s Surveillance State. He summarizes the three most controversial provisions of the act.

SHANE HARRIS: One that allows them to place multiple wiretaps when they're tracking a single individual. It’s called the roving wiretap. Another is something called the business records provision, which allows them to obtain all kinds of different records. It could be hotel records, rental car, credit card receipts, etc. And a third is something called the lone wolf provision, which allows the government to start surveillance on someone, even if they can't show that he's connected to a terrorist organization or is a foreign agent or a spy.

BOB GARFIELD: What is the political climate that permits, you know, what appears to be an incursion into the Bill of Rights to occur with so little public debate?

SHANE HARRIS: When these reauthorization debates come up there is this line that gets drawn in the sand, and members have to choose between being on the side of law enforcement and intelligence agencies, and giving them the tools they need to catch terrorists and bad guys, or being on the other side.

BOB GARFIELD: In fact, when Senator Rand Paul, the Republican from Kentucky, a libertarian, tried to raise issues concerning the reauthorization, Senator Harry Reid, the majority leader in the Senate, denounced him essentially as soft on terror.

SHANE HARRIS: That's right, and he said that if Senator Paul did not stop his efforts to try and block passage of the reauthorization that he was giving Al Qaeda and other terrorist groups an opportunity to start plotting against the United States, which is quite an exaggeration, considering any of the surveillance going on right now of terrorist organizations would continue even if the Patriot Act expired.

Law enforcement and intelligence agencies wouldn't be able to get new authorizations until the law was renewed, but to sort of cast it in these terms, the way that Senator Reid did, really gives you a sense of how really kind of binary this debate becomes when it’s taken up at the eleventh hour like this, which it so frequently is.

BOB GARFIELD: And on the subject of eleventh hours, this week just before Congress took up the issue there was a bombshell from Senator Ron Wyden, who revealed that there could be secrecy within the secrecy embedded in this act.

SENATOR RON WYDEN: I believe there are two Patriot Acts in America. The first is the text of the law itself and the second is the government’s secret interpretation of what they believe the law means.

SHANE HARRIS: It turns out that, according to Senator Wyden and Senator Udall, that there is some kind of very broad interpretation of the Patriot Act that the government is making and that it is essentially keeping to itself, and he couldn't talk about this in great detail without violating his confidentiality oath, he said.

But what he’s implying is that there is something within the business records provision, one of these provisions that was up for reauthorization and that generally lets the FBI collect all kinds of records, that is being very broadly interpreted to, in the senator’s view, allow the FBI to get more information than the law actually allows it to get.

And what’s very important here is he’s not saying that he wants the government to come out and say, what are you collecting; what he wants some public light on is the legal rationale for why it is they're interpreting the provision this way. It raises the question of whether or not there is a secret Patriot Act within the Patriot Act.

BOB GARFIELD: If Senator Wyden is right, this is happening under the Barack Obama administration, which campaigned against this kind of overreach. Is it that governments, once they have police powers, simply do not want to surrender them?

SHANE HARRIS: I think that’s right. They tend to increase over time, and no administration wants to get rid of them. This administration particularly, which has deeply committed to breaking up terrorist groups, to attacking Al-Qaeda – this is [LAUGHS] the president that ordered, you know, the killing of Osama bin Laden, after all, they look at these tools and the Patriot Act and others as absolutely essential to doing that.

BOB GARFIELD: When, however, a society begins to trade some of its basic freedoms for security, isn't it time to have what the President calls an adult conversation?

SHANE HARRIS: Absolutely. And I think what’s remarkable about this late revelation with the Patriot Act, if it’s, in fact, true that the administration is interpreting it in secret behind closed doors, that would be extraordinary probably for any administration. I think it will now really fall, frankly, to journalists and to some other members [LAUGHS] of Congress to find out what exactly this interpretation is and if the senators are overly concerned about it. But right now I would probably err on the side of being extremely skeptical of what the administration is doing.

BOB GARFIELD: All right, Shane. Thank you very much.

SHANE HARRIS: My pleasure. Thanks.

BOB GARFIELD: Shane Harris is a reporter for The Washingtonian and author of The Watchers: The Rise of America’s Surveillance State.